Gayles v. Sky Zone Trampoline Park

• Decision Date: 12 May 2021
• Docket Number: DOCKET NO. A-3519-19
• Parties: Justin GAYLES, an infant BY his G/A/L, Gwendolyn GAYLES, and Gwendolyn Gayles, Individually, Plaintiff-Respondent, v. SKY ZONE TRAMPOLINE PARK, Defendant-Appellant, and Go Ahead and Jump 3, LLC, d/b/a Sky Zone Mount Olive i/p/a Sky Zone Trampoline Park, Third-Party Plaintiff-Appellant, v. Joan Tongol, Third-Party Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

468 N.J.Super. 17

254 A.3d 1271

Justin GAYLES, an infant BY his G/A/L, Gwendolyn GAYLES, and Gwendolyn Gayles, Individually, Plaintiff-Respondent,

v.SKY ZONE TRAMPOLINE PARK, Defendant-Appellant,andGo Ahead and Jump 3, LLC, d/b/a Sky Zone Mount Olive i/p/a Sky Zone Trampoline Park, Third-Party Plaintiff-Appellant,

v.Joan Tongol, Third-Party Defendant-Respondent.

DOCKET NO. A-3519-19

Superior Court of New Jersey, Appellate Division.

Submitted March 15, 2021

Decided May 12, 2021

Wood Smith Henning & Berman, LLP, attorneys for appellants (Kelly A. Waters, of counsel and on the briefs; Carolynn A. Mulder, Berkeley Heights, on the briefs).

Bendit Weinstock, PA, attorneys for respondent (Kay A. Gonzalez, on the brief).

Before Judges Messano, Suter and Smith.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Joan Tongol invited several friends of her minor son to celebrate his birthday at Sky Zone Trampoline Park in Mount Olive, operated by defendant Go Ahead and Jump 3, LLC. Tongol told the children's parents that she had reserved time for a group of ten, and the parents could drop their children off with Tongol, who would drive them to the trampoline park. On the day of the party, plaintiff Gwendolyn Gayles drove her son Justin, also a minor, to the Tongol home. Justin and Tongol's son had been classmates since grade school.

Tongol had booked the reservation online. On arrival at Sky Zone, after she checked in and paid for the group, Tongol was directed to a "waiver station," where she had to complete and sign an agreement (the Agreement) displayed on a computer screen. In a section, "Included Minors," Tongol listed every child with his or her birthdate, which she obtained by asking the children. At her deposition, Tongol described the process as "quick," and she completed the Agreement without reading it fully and without any assistance from defendant's staff.

The Agreement contained separate paragraphs with boxes next to each to click on and check. The introductory paragraph stated: "I[,] on behalf of myself, my spouse, my children, my parents, my heirs, my assigns, personal representatives, estate, and insurers, agree as follows." The first paragraph read in part: "I further certify that I am the parent or legal guardian of the child(ren) listed above on this Agreement or that I have been granted power of attorney to sign this Agreement on behalf of the parent or legal guardian of the child(ren) listed in this Agreement."

The second paragraph read in part: "I have had sufficient opportunity to read this entire document. I understand this Agreement and I voluntarily agree to be bound by its terms. I understand that this Agreement waives certain rights that I have in exchange for permission to gain access to the Location." The paragraph then listed those rights that were waived, including: (a) "the right to sue ... in a court of law"; (b) "the right to a trial by judge or jury"; (cd) "the right to claim money ... for accidents causing injury within the scope of the risk assumed" or for any accident unless defendant "committed acts of gross negligence or willful and wanton misconduct"; and (e) "the right to file a claim ... if I wait more than one year from the date of this Agreement."

The fourth paragraph, entitled "Waiver of Trial, and Agreement to Arbitrate," read in capitalized print:

IF I AM INJURED AND ... MAKE A CLAIM AND/OR IF THERE ARE ANY DISPUTES REGARDING THIS AGREEMENT, I HEREBY WAIVE ANY RIGHT I HAVE TO A TRIAL IN A COURT OF LAW BEFORE A JUDGE AND JURY. I AGREE THAT SUCH DISPUTE ... WILL BE DETERMINED

BY BINDING ARBITRATION BEFORE ONE ARBITRATOR TO BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES.

This section continued by stating that if despite her "express agreement to arbitrate any claims of injury," Tongol initiated a lawsuit, she would pay $5000 in liquidated damages within sixty days.

Additional paragraphs included an exhaustive waiver of the right to bring suit by those eighteen-years of age or older, unless the injury was caused "by [defendant's] greater than ordinary negligence," and it also included an agreement to indemnify defendant for counsel fees. Tongol checked all the boxes and electronically signed the Agreement.

None of the children's parents had executed a power of attorney in favor of Tongol, but she believed they had authorized her to sign the Agreement on behalf of the children. While playing on the trampolines, Justin fractured his leg

.

Plaintiff filed her complaint individually and as Justin's guardian ad litem alleging defendant was negligent. The judge denied defendant's motion to dismiss and compel arbitration, as well as its motion for reconsideration; defendant filed an answer and third-party complaint naming Tongol as third-party defendant.

After completion of some discovery, Tongol moved for summary judgment, and defendant cross-moved for summary judgment to dismiss plaintiff's complaint and compel arbitration. Judge Noah Franzblau denied both motions. Defendant sought reconsideration, which the judge also denied, and this appeal followed.¹

Before us, defendant argues the judge erred in denying summary judgment and not compelling arbitration because Tongol "had apparent authority to execute the Agreement on [plaintiff's] behalf." It also contends that Tongol's apparent authority meant the Agreement was not void and unenforceable, as the judge found. Lastly, defendant argues that "the implications" of the order denying arbitration "places an unreasonable, if not impossible, burden on ... defendant to verify and validate the certifications made by all adult patrons who accompany minors" to its facility.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

We review the decision on a motion for summary judgment de novo, applying the same standard used by the trial court, which

mandates that summary judgment be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."

[ Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199, 129 A.3d 1069 (2016) (quoting R. 4:46-2(c) ).]

A dispute of material fact is "genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24, 164 A.3d 1030 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38, 84 A.3d 583 (2014) ). We owe no deference to the trial court's legal analysis, The Palisades at Fort Lee Condo. Ass'n v. 100 Old Palisade, LLC, 230 N.J. 427, 442, 169 A.3d 473 (2017) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512, 984 A.2d 872 (2009) ), and we limit our review to the motion record. Ji v. Palmer, 333 N.J. Super. 451, 463–64, 755 A.2d 1221 (App. Div. 2000) (citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188, 188 A.2d 24 (1963) ).

Usually, an order denying summary judgment is not appealable as of right, because the denial of summary judgment "decides nothing and merely reserves issues for future disposition."

Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 356, 853 A.2d 298 (App. Div. 2004). However, an order compelling or denying arbitration is appealable as of right. R. 2:2-3(a). Our summary judgment standard of review remains the same. See Moore v. Woman to Woman Obstetrics & Gynecology, LLC, 416 N.J. Super. 30, 40, 3 A.3d 535 (App. Div. 2010) (recognizing standard applies to review of summary judgment compelling enforcement of arbitration agreement).

"De novo review applies when appellate courts review determinations about the enforceability of contracts, including arbitration agreements." Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 316, 199 A.3d 766 (2019) (citing Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186, 71 A.3d 849 (2013) ). "Whether a contractual arbitration provision is enforceable is a question of law, and we need not defer to the interpretative analysis of the trial ... court[ ] unless we find it persuasive." Ibid. (citing Morgan v. Sanford Brown Inst., 225 N.J. 289, 302–03, 137 A.3d 1168 (2016) ).

Although "arbitration [is] a favored method for resolving disputes ... [t]hat favored status ... is not without limits." Garfinkel v. Morristown Obstetrics & Gynecology Assocs., PA, 168 N.J. 124, 131–32, 773 A.2d 665 (2001). "A court must first apply ‘state contract-law principles ... [to determine] whether a valid agreement to arbitrate exists.’ " Hirsch, 215 N.J. at 187, 71 A.3d 849 (alteration in original) (quoting Hojnowski v. Vans Skate Park, 187 N.J. 323, 342, 901 A.2d 381 (2006) ). "This preliminary question, commonly referred to as arbitrability, underscores the fundamental principle that a party must agree to submit to arbitration." Ibid. (citing Garfinkel, 168 N.J. at 132, 773 A.2d 665 ); see also Kernahan, 236 N.J. at 319, 199 A.3d 766 ("[A] court's initial inquiry must be — just as it is for any other contract — whether the agreement to arbitrate ... is ‘the product of mutual assent, as determined under customary principles of contract law.’ " (quoting Atalese v. U.S. Legal Servs. Grp., LP, 219 N.J. 430, 442, 99 A.3d 306 (2014) )). "[T]he arbitrability analysis is expressly included in the Arbitration Act." Hirsch, 215 N.J. at 187–88, 71 A.3d 849 (citing N.J.S.A. 2A:23B-6(b) ).

Here, Judge Franzblau properly focused not on the question of arbitrability, but rather whether on the motion record presented, defendant demonstrated as a matter of law that Tongol possessed apparent authority to act on plaintiff's behalf, enter into the Agreement as her agent, and bind plaintiff to its terms, which...